Opinion
No. 14-05-01172-CR
Memorandum Opinion filed March 20, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 23 rd District Court Brazoria County, Texas, Trial Court Cause No. 46966.
Panel consists of Justices ANDERSON, HUDSON, and GUZMAN.
MEMORANDUM OPINION
A jury found appellant Derek Haggerty guilty of possession of a prohibited substance in a correctional facility. See TEX. PENAL CODE ANN. § 38.11(d) (Vernon Supp. 2005). Appellant pled "true" to the enhancement allegations, and the jury assessed punishment at fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division, to run consecutively with the sentence imposed in Cause Number F-9501589-PI out of Dallas County for aggravated robbery, and a fine of $10,000. In his first point of error, appellant contends the evidence is factually insufficient to support the jury's finding that he knowingly possessed marijuana. In his second point of error, appellant argues the trial court abused its discretion by excluding the lay opinion testimony of Corey Taylor. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2002, appellant was an inmate at the Darrington Unit of the Texas Department of Criminal Justice. Correctional officers Mullins and Mayberry were ordered to search the cell occupied by appellant and his cell mate, Corey Taylor. When the officers arrived at appellant's cell, appellant was seated at a desk near the rear of the cell, and Taylor was lying on a bed near the entrance. Taylor handed a Lays potato chip bag to appellant. The potato chip bag contained several small bags of marijuana, with a combined weight of 7.31 grams. In plain sight, on top of the desk where appellant was sitting, the officers found loose marijuana and a Ziplock bag containing more marijuana. The total weight of the marijuana found on the desk was 1.35 grams. Taylor was searched and found to be in possession of 1.20 grams of marijuana hidden in his clothing. Appellant and Taylor were both charged with possession of marijuana in a correctional facility. Appellant and Taylor were tried separately, and each testified at the other's trial. Taylor's case was tried first.I. Corey Taylor's Trial
On June 10, 2004, appellant gave sworn testimony at Taylor's trial wherein appellant admitted he knowingly possessed all of the marijuana found in his cell at the Darrington Unit on January 9, 2002, including the marijuana found on Taylor's person. Appellant testified he intended to possess the marijuana and smoke it to relieve stress. Appellant testified Taylor had no knowledge of the marijuana and never intended to possess it. Appellant further testified he tried to flush the potato chip bag down the toilet when the officers entered his cell, but was prevented from doing so by Mayberry. A jury found Taylor not guilty. Appellant's testimony at Taylor's trial was subsequently admitted into evidence at appellant's trial and published to the jury.II. Appellant's Trial
Appellant's case came to trial on August 15, 2005. Officer Mullins testified that when he and Mayberry initiated the search of appellant's cell, appellant was seated at the desk at the rear of the cell, and Taylor was lying on a bunk bed near the entrance. When the officers tried to enter the cell, Taylor blocked the doorway and handed a potato chip bag to appellant. Mullins testified that after appellant received the potato chip bag, appellant attempted to flush the contents of the bag down the toilet. Appellant turned his back on the officers, stooped over the toilet, and attempted to unfold the bag. Mullins testified he quickly entered the cell and positioned himself between appellant and the toilet. Mayberry removed Taylor from the cell and searched him. Appellant surrendered the potato chip bag to the officers. Mullins further testified that after he and Mayberry opened the potato chip bag and discovered its contents, appellant offered the officers a monetary bribe to "turn the other cheek." Correctional Officer Ernest Rodriguez testified he arrived at appellant's cell after Mayberry and Mullins began their search. Rodriguez testified that when he arrived, appellant and Mullins were inside of the cell and appellant was holding the potato chip bag in his hand. Taylor exited the cell and was searched by Mayberry. Rodriguez testified appellant initially refused to exit the cell; however, after repeated instructions from the officers, appellant came out of the cell and submitted to a search of his person. Rodriguez further testified that the officers found marijuana in the potato chip bag recovered from appellant and on top of the desk in appellant's cell. Taylor testified that all of the marijuana found in his cell on January 9, 2002 belonged to him, and appellant had no knowledge of the marijuana. Contrary to the testimony of Officer Mullins, Taylor testified he was sitting at the desk near the rear of the cell and appellant was sleeping on the bunk when the officers arrived. Taylor testified he did not hand the potato chip bag to appellant. Rather, the bag was lying near the corner of appellant's bunk and, when Taylor stood up from his seat, the bag "just flipped right up" to appellant. Thereafter, appellant "just grabbed the bag" and stood up. Taylor also testified appellant could not have known what was in the bag because Taylor glued it shut. Taylor further testified he is a high-ranking member of the Crips street gang, and the Crips have rules which require gang members to protect each other from prosecution. Mike Holm, an investigator for the Special Prosecution Unit, testified that on the day prior to Taylor's testimony in the instant case, Taylor told Holm that the marijuana belonged to appellant. Phil Hall, a prosecutor for the Special Prosecution Unit, testified he tried Taylor for this same offense, and appellant testified in Taylor's trial that the marijuana belonged to appellant. A transcript of appellant's testimony in Taylor's trial, discussed supra, was introduced into evidence and published to the jury. Appellant testified he was asleep in his bunk when Mullins and Mayberry entered his cell, and he had no knowledge about the presence of marijuana in the cell. Appellant testified Taylor was seated at the desk when the cell door was opened. Contrary to Taylor's testimony, appellant testified Taylor handed appellant the potato chip bag and instructed appellant to take it. Appellant further testified he was obligated to follow Taylor's instructions because appellant was "riding with the Crips," and Taylor was a Crips member. Appellant testified he believed the potato chip bag contained bleach, which was used by inmates to clean their cells. Appellant testified he was coerced by members of the Crips gang to give false testimony at Taylor's trial. Appellant told the jury that four Crips members armed with knives came into his cell and gave him a piece of paper describing what he was supposed to say at Taylor's trial. Appellant further testified that he was lying when he testified at Taylor's trial and claimed responsibility for the marijuana. Appellant testified he did not intend to possess marijuana on January 9, 2002; he did not know what was in the potato chip bag; and he did not attempt to flush the contents of the bag down the toilet. Appellant also testified that he denied responsibility for the marijuana when he testified at his disciplinary hearing at the Darrington Unit. The jury found appellant guilty and assessed punishment at fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. This appeal followed.DISCUSSION
I. Factual Sufficiency
In his first issue, appellant contends there is factually insufficient evidence to sustain the jury's verdict that appellant intended to possess or had knowledge he was in possession of marijuana. Our factual sufficiency review begins with the presumption that the evidence supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant does not deny that he possessed marijuana in a correctional facility. Rather, appellant contends the evidence is factually insufficient to establish the mens rea element of the offense. Appellant was convicted under section 38.11 of the Texas Penal Code, wherein "[a] person commits an offense if the person possesses a controlled substance or dangerous drug while . . . in a correctional facility." TEX. PENAL CODE ANN. § 38.11(d). A person commits an offense only if he voluntarily engages in conduct, including possession. TEX. PENAL CODE ANN. § 6.01(a) (Vernon 2003). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b). We have reviewed the entire record for evidence supporting the jury's verdict that appellant knowingly possessed marijuana in a correctional facility. This evidence, set out in the Factual and Procedural Background section above, is not so weak that the verdict is clearly wrong and manifestly unjust. See Prible, 175 S.W.3d at 730-31. The only evidence presented at trial directly refuting the State's case is the testimony of appellant and Taylor. Appellant asserts that the record contains overwhelming evidence that he was compelled to give false testimony at Taylor's trial. Appellant further argues that, aside from his testimony at Taylor's trial, he has consistently denied the State's claim that he knowingly possessed marijuana. Therefore, appellant contends, the testimony of appellant and Taylor provides overwhelming evidence which is contrary to the verdict. The testimony of Appellant and Taylor is directly contradicted by the testimony of correctional officers Mayberry and Rodriguez, as well as appellant's own testimony at Taylor's trial. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). Resolution of any conflicts in the evidence falls within the exclusive province of the jury. Id. The jury was free to disbelieve the testimony of appellant and Taylor, and chose to do so. See id. Based on our review of the record as a whole, we cannot say that the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. See Prible, 175 S.W.3d at 730-31. The verdict is neither clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. Rather, the verdict reflects the jury's decision to believe some of the witnesses and not others, which is its role. The evidence is not factually insufficient. Appellant's first issue is overruled.II. Lay Opinion Testimony
In his second issue, appellant argues the trial court erred in excluding the lay opinion testimony of Corey Taylor. Appellant attempted to introduce testimony regarding Taylor's opinion that the Crips gang members at Darrington would have threatened appellant and compelled appellant to give false testimony at Taylor's trial. The State objected on the grounds of speculation and hearsay, and the trial court sustained the State's objection. Appellant contends that because Taylor had knowledge of the rules and practices of the Crips gang, which included protecting one another from prosecution, Taylor should have been allowed to give an opinion as to whether Crips members would have followed the mandates of their gang without orders from Taylor. The State argues Taylor's opinion testimony was properly excluded because it was not based on his personal knowledge or experience as required by Texas Rule of Evidence 701, and because appellant failed to lay the proper predicate. We agree with the State. A trial court's decision on the admissibility of evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. A lay witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony or the determination of a fact in issue. TEX. R. EVID. 701; Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App. 2002). Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Id. Because Rule 701 requires the testimony to be based on the witnesses's perception, it is necessary that the witness personally observed or experienced the events about which he is testifying. Id. Thus, the witness's testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. Id. This also incorporates the personal knowledge requirement of Rule 602 which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. Id. The proponent of lay-opinion testimony bears the burden of establishing that the witness has personal knowledge of the events upon which his opinion is based. Fairow v, State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Appellant sought to establish that he gave false testimony at Taylor's trial because he was coerced by members of the Crips gang, of which Taylor is a leading member. Taylor testified he has been a Crips member since 1987 and is an "original gangster," the highest rank within the Crips. Taylor testified he created the rules governing the conduct of Crips members incarcerated at the Darrington Unit, and those rules require Crips members to protect one another from prosecution. Taylor further testified he did not personally threaten appellant or ask anyone else to threaten appellant in order to influence appellant's testimony at Taylor's trial. During appellant's case in chief, Taylor gave the following testimony in the presence of the jury:[defense counsel]: Are you familiar with the policies and the tendencies of the street gang Crips?
[Corey Taylor]: Yes, sir, I made the rules that pertain to my Crip set.
[defense counsel]: Is one of those rules for the Crips to protect one another?
[Corey Taylor]: Yes, sir.
[defense counsel]: How serious or strong of a rule is that? How seriously do y'all take that?
[Corey Taylor]: Very seriously, sir.
[defense counsel]: Would that include protecting one another from prosecution?
[Corey Taylor]: Yes, sir.
[defense counsel]: Is that a rule that requires a command that it be followed each time, or is it one that's generally understood all the time?
[Corey Taylor]: It's not a — it's not — it's just part of an oath. It's just, like, it's part of being a Crip.
[defense counsel]: Do you have an opinion as to whether or not the other Crips at Darrington would have taken it upon themselves to protect you from prosecution by threatening Mr. Haggerty?
[Corey Taylor]: Yes, sir.
[counsel for the State]: Your Honor, I'm going to object to speculation and hearsay.
[The Court]: I believe the answer was, yes, is that correct, Madam Reporter?
[The Court Reporter]: Yes, sir.
[The Court]: The objection's sustained.In his brief, appellant contends that "Taylor's opinion was based on long running perceptions as a gang leader. Taylor made the rules and had ample time to perceive how they were being carried out." Taylor testified at appellant's trial that the Crips' rules were "part of an oath" and were taken "very seriously." However, Taylor did not testify he had personal knowledge of the Crips members at Darrington actually following the gang's rules. In fact, Taylor did not testify he had personal knowledge of any specific prior instances of Crips members threatening a witness to protect another gang member from prosecution. Therefore, Taylor's opinion testimony was not based on his perceptions; rather, it was based on his speculative conclusions regarding what the Crips gang members would have done to protect him from prosecution. Accordingly, we hold that Rule 701 is not met by Taylor's testimony and the trial court did not abuse its discretion in sustaining the State's objection. Appellant's second issue is overruled.